The “Looming” Challenges With H-1B Visas:  Some Thoughts

                With the news of in-fighting amongst supporters of incoming-President Donald J. Trump regarding the H-1B visa process, I thought it was necessary to write this article to express some of my thoughts after serving as an employment lawyer for over 25 years.  Over those 25 years, I have represented U.S. citizens with complaints against employers who have preferred H-1B workers over them, and I have represented H-1B workers who have been cheated on wages by their employer.  I believe I have a unique perspective on this debate.

Like many things in life, both sides of this “debate” may be right. 

I.                   What is An H-1B Visa?

An H-1B visa is a non-immigrant visa, allowing an individual to live and work in the United States on a temporary basis.  Their dependents may be granted H-4 visa status.  This visa status does not confer on the H-1B visa holder (or the H-4 visa holder) the right to citizenship, stay forever, vote, receive unemployment benefits, etc.  While it may be a path for permanent residency, only employers can file this visa.  The only requirement is that the employer make a number of promises, most substantially, that they will pay the “prevailing wage.”  There are only 65,000 H-1B visas allowed each year for businesses.  However, there may be greater numbers of H-1B visas granted, if the employer is a nonprofit associated with an educational institution, for example.  The US government filing fees for H-1B visas are expensive and employers generally need legal assistance to file these visas and otherwise comply with U.S. immigration and employment laws.  Many small employers turn away from the H-1B visa program due to the perceived complexity of the H-1B program, but it is actually very straightforward and simple.

H-1B visas are not used exclusively for technology companies – far from it.  They are used in healthcare, education, and even financial.  Nearly all educated and prosperous “first-World” nations utilize some form of employment-based immigration to compete with other prosperous nations to recruit talent for their workforce.  In fact, the U.S. is less generous than other Western countries in granting specialized work visas. 

H-1B employers are subject to audit from agencies within the Department of Homeland Security and they may be “debarred” from the sponsoring workers.

H-1B visas can be granted to any nationality.  In fact, I have seen English citizens and Canadians on H-1B visas.  It is a fiction that H-1B visa holders are those from India. 

                 It is also a total fiction that H-1B visa holders are “indentured servants.”  H-1B visa holders merely need to find another employer to sponsor their H-1B visa.  While that may add an additional complication to the hiring process, that does not mean that they are tied down in any way to their employer.  Far from it. 

                Also, given the small size of the H-1B work force compared to the large U.S. economy, there is no evidence that H-1B workers are displacing U.S. workers, at least in any substantial manner.  U.S. workers do have existing legal rights and protections from being displaced by an H-1B worker.

II.                 So, What Is the #%*! Problem? 

Let's agree on one starting point:  H-1B visas provide an absolutely essential edge for U.S. manufacturing, technology, and healthcare.  In my experience, many H-1B visa holders change their status from student visas (F-1).  These individuals are educated in the United States, acclimated to the culture, speak perfect English, and are well-educated.  These individuals can contribute to the economy and tax base.  

H-1B visas are also essential for the defense industry.  Much of the technology that creates new U.S. weapons systems involve H-1B workers. 

However, there are problem with H-1B visas.  Here are the major ones:

a.      U.S. employers can hire an H-1B visa at the prevailing wage.  However, this wage is set by the U.S. Department of Labor and may not be actually consistent with true wage rates in the area.  Employers merely have to “attest” to this requirement and not necessarily prove that they are in compliance with it.

b.     Unlike employer sponsorship for permanent residency, employers seeking to sponsor H-1B visas do not need to show that they made any effort to hire U.S. workers.  This increases the potential for U.S. workers to be overlooked in the hiring process.   It also increases the potential for abuse.

c.      The “specialty occupation” that defines an H-1B visa is awkward and tied to occupations requiring a Bachelor's degree.  This limits the positive uses of the H-1B visa program and increases the potential for fraud. 

III.              A “MAGA” H-1B Fix?

If you agree that the H-1B visa program has flaws, here are some some ideas to potentially improve the H-1B program: 

a.      U.S. employers must show that they have offered the position to U.S. workers and swear that they have made good faith efforts to recruit U.S. workers before filing for an H-1B visa.  Amazingly, this is currently not a requirement.

b.     Allow H-1B visas to be used for occupations only deemed to be “shortage” occupations by the U.S. Department of Labor.  This may require Regional considerations, because a shortage in one part of the Country may not mean that there is a shortage in another part of the County.

c.      The H-1B visa should be further restricted to workers who have “specialized occupations,” which would include Registered Nurses whose position may not always require a Bachelor's degree (and who historically have not been granted H-1B visas). 

d.     H-1B visas should be first principally limited to graduates of U.S. universities, thereby maintaining the educational investment that U.S. taxpayers have placed into these future workers.   Once all U.S. graduates have been issued an H-1B visa, then non-U.S. graduates could become eligible for an H-1B visa.

e.      H-1B visas should not be issued to “body shops,” those recruitment firms that sponsor workers for H-1B visas and then place them with an actual employer. 

f.        H-1B visa holders should all be required, regardless, to undergo the strictest background checks and English language proficiency. 

g.      Prohibit an H-1B employer from using a “non-compete” agreement with an H-1B worker, and further require that an H-1B employer not require U.S. workers to have less advantageous rights.  In other words, an H-1B employer who sponsors an H-1B worker would not be allowed to use non-compete agreements with its work force.  (Trade secret and confidentiality agreements could, of course, be required).

h.      H-1B visas should be fully paid for by U.S. employers, and not require U.S. taxpayer subsidy. 

Other issues, such as whether H-1B visa holders who have children born in the United States, can be reserved for other policy makers.  Other issues, such as whether F-1 visas should be granted to citizens of certain countries, and whether dependents of H-1B visa holders (H-4 visa holders) should be granted employment authorization, are topic of other conversation.

This is not a political post.  Rather, this post is intended to inspire policy makers and other supporters in the incoming administration to create an “American-first” H-1B visa policy.   Good luck America!